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Lobbying, Influence, Bribery, and Gift-Giving in Alabama

Thursday, February 3rd, 2011

Robert Wechsler

Last month, I did a
blog
post on the huge exceptions to Alabama's
new
gift provisions (pp. 24-26). What I didn't note was the similarities, and the gulf,
between the bribery provision in Alabama's constitution and the gift provisions in the old and new statutes, and how this
has been dealt with, or ignored. State senator Bryan Taylor, chair
of the Senate Committee on Constitution, Campaign Finance, Ethics and
Elections, wrote
a long piece last weekend for the Montgomery Advertiser, looking at
this very issue, but somehow ignoring much of the gulf himself.

In any event, his op-ed piece raises interesting issues with respect to
the relative roles of criminal and ethics laws.

From Fun to Function: The Constitution and Gift Exceptions
The state constitution prohibits all gifts to an official made "to
influence him in the performance of any of his public or official
duties" (see Taylor's piece for the entire provision). As lobbyists are
pointing out now, "lobbyists don't give anything to public officials
but for the purpose of influencing official action." Since the
constitution defines its gift prohibition as "bribery," a criminal
offense, a gift from a lobbyist would therefore be considered a bribe.

Since the constitutional provision was last amended in 1901, how have
lobbyists done business in Alabama since then? Easy: their clever
friends in the state legislature cut the heart out of the
constitutional provision by carving holes in the definition of "a thing
of value," for example, by excluding social and recreational junkets. Of course,
because the legislature is more sophisticated now, the principal
exception to the new gift rule involves "the educational function" of a
gift. But as long as there are major exceptions, the gift rule is only
an obstacle, not a prohibition, and the constitutional provision remains miles away across the gulf, ignored.

The Intent of "Corruptly"
But this has not stopped lobbyists from criticizing the new gift provisions. Some
are saying that under the new gift provisions not a penny can be given
to an official, and that, therefore, the new law is overly restrictive.
Some are calling for the addition of an intent element, so that only
attempts to "corruptly" influence an official would violate the ethics
code.

This is interesting because, according to Taylor, the 1901
constitutional convention got rid of the word "corruptly," because it
placed too great a burden of proof on prosecutors. It's notable that
lobbyists want to add to ethics enforcement a burden of proof the state
felt was not justified in criminal enforcement.

The Difference Between Criminal and Ethics Enforcement
Senator Taylor has not recognized a serious problem here. There is a
big difference between bribery and gift-giving, between criminal laws
and ethics laws. Government ethics is a less onerous, administrative
approach to official misconduct. Ethics commissions do not put anyone
in prison, and their ability to fine is limited. In return for these
limits, their burden of proof is far lower and the process far simpler.

Bribery is very hard to prove. Government ethics is intended to prevent
bribery indirectly, by putting an end to gift-giving from those doing
business with the government. There should be very few, if any,
exceptions to this. An official's budget can pay for his lunch with a
lobbyist. If the funds are not available, the lobbyist can meet with
the official in the official's office.

Influence Is a Criminal Concept, Not an Ethics Concept
This issue in Alabama shows how inappropriate it is to include the
concept of influence in government ethics, and yet how thin a line
there is between bribery and gifts from lobbyists, including gifts from
those seeking to do business with or interested in matters involving
the government. This is why the ban on gifts from restricted sources
should be total, without exception, as the Alabama constitutional convention intended. But such gifts should not be considered criminal bribes.

Totally prohibiting such gifts makes compliance easier, and
it protects officials and the public from any appearance of
impropriety. It's a win-win situation.

But it does not appear to be a situation that even Senator Taylor
supports. He says that "the new law was not meant to be applied within
the context of the old culture; it was meant to upend it." But he
ignores the new exceptions, which preserve the old culture, merely
changing the language of the excuses for taking gifts.

Exceptions are the old culture. Effectively denying that the new
exceptions are the same wine in a new bottle is as much a part of the
old culture as lobbyists complaining about ethics reform. Alabama still
has a long way to go.